White v. Rio Grande Western Railway Co.

• Citation: 61 P. 568,22 Utah 138
• Court: Supreme Court of Utah
• Decision Date: 04 June 1900
• Parties: JOHN E. WHITE AND ANN WHITE, APPELLANTS, v. RIO GRANDE WESTERN RAILWAY COMPANY, A CORPORATION, RESPONDENT

61 P. 568

22 Utah 138

JOHN E. WHITE AND ANN WHITE, APPELLANTS, v. RIO GRANDE WESTERN RAILWAY COMPANY, A CORPORATION, RESPONDENT

Supreme Court of Utah

June 4, 1900

Appeal from the Third District Court, Salt Lake County. Hon. A. N Cherry, Judge.

Action to recover damages for the death of plaintiff's son caused by the negligence of defendant company. At the close of plaintiff's testimony a non-suit was granted. From such judgment of non-suit plaintiffs appealed.

Reversed and remanded.

Messrs Patterson & Moyer, for appellants.

The court erred in sustaining the defendant's motion for non suit in this.

That the particular grounds on which the motion was made was not sufficiently called to the attention of the trial judge and of the plaintiffs at the time the motion was made, and was insufficient to raise any question on which the court could properly pass at that time. Frank v. Bullion-Beck & Champion Mining Co., 19 Utah 35, 56 P. 421; Kiler v. Kimbal, 10 Cal. 268; People v. Banvard, 27 Cal. 474; Belcher v. Murphy, 81 Cal, 40.

Messrs. Bennett, Harkness, Howat, Sutherland and Van Cott for respondent.

BASKIN, J. BARTCH, C. J. and MINER, J., concur.

OPINION

BASKIN, J.

This is an action in which the plaintiffs seek to recover damages for the death of their son Thomas F. White, alleged to have been caused by the negligence of the defendant company. At the close of the testimony offered by plaintiffs, on motion of defendant, a non-suit was granted. The following is the only ground stated in the motion, to-wit: "There is no evidence to show negligence towards Thomas F. White, deceased, for which an action will lie against defendant in favor of plaintiffs or either of them."

Among the assignments of error by the appellant, is the following: "The court erred in sustaining defendant's motion for non-suit in this: That said motion was made in general terms, and the particular grounds on which the motion was made, were not sufficiently called to the attention of the trial judge, and of the plaintiffs, at the time the motion was made, and was insufficient to raise any question on which the court could properly pass at that time."

This court at the February term, in the case of Lewis v. The Silver King Mining Co., held that "the party moving for a non-suit should, in the motion, lay his finger on the exact point of his objection * * * and thereby call the court's attention, and that of the opposite party to the point on which he relies." See, also, Frank v. Bullion Beck & Champion Min. Co., 19 Utah 35; 56 P. 419; and McIntyre v. Ajax Min. Co., 20 Utah 323; 60 P. 552.

Counsel for the respondent contend "that the rule that the motion for a non-suit does not specifically state the grounds of the objection, can only be raised on appeal when the motion is denied, and the party making the motion complains that it should have been granted, or when granted, by the plaintiff only when he shows that the defect could have been remedied by him if it had been called to his attention," and in support of this contention state that "in other cases than those we do not know of a single case where the appellate court has held that the granting of a non-suit or the sustaining of an objection was erroneous because the particular ground upon which the motion for a non-suit was asked, or objection made, was not pointed out in the motion or in the objection." They do not, however, cite any case making any distinction.

In each of the cases hereinbefore cited, and which were decided by this court, the motion for a non-suit was granted.

In the case of Sanchez v. Neary, 41 Cal. 485, the grounds of the motion were, "First, that the plaintiff had failed to show the title to the demanded premises to be in himself; second, that he had failed to show that said premises are included in any of the deeds offered in evidence, or in the grant or patent to Sutter. The motion was granted by the lower court, and in the appellate court the respondent claimed that a certain deed introduced by appellant did not include the premises in controversy. The court, in its opinion, said: "If the defendants (respondent) intended to rely, in their motion for a non-suit on the ground that the deed from Sutter, Jr., to Brannan does not include the locus in quo, they should have distinctly so stated at the time."

In the case of Flynn v. Dougherty, 91 Cal. 669, 27 P. 1080, a motion for a non-suit was granted, and the appellate court in reversing the judgment and order,...